Mannix v Department of Education and Communities
[2014] NSWCATAD 35
•24 March 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Mannix v Department of Education and Communities [2014] NSWCATAD 35 Hearing dates: 17 February 2014 Decision date: 24 March 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: G.D. Walker, Senior Member Decision: The decision under review is affirmed
Catchwords: Government information-test paper for opportunity class placement -risk management -- coaching colleges - balancing considerations Legislation Cited: Administrative Decisions Tribunal Act 1997; Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009 Cases Cited: Australians for Sustainable Development v Barangaroo Delivery Authority [2013] NSWADT 252; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Flack v Commissioner of Police [2011] NSWADT 286; Hurst v Wagga Wagga City Council [2011] NSWADT 307; Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195. Category: Principal judgment Parties: K Mannix (Applicant) Representation: K Mannix (Applicant)
Crown Solicitor's Office (Respondent)
File Number(s): 133214
reasons for decision
Background
The applicant Mrs K Mannix is the mother of twins, Mark and Rebecca (not their real names). Both children undertook the 2012 Opportunity Class Placement Test (OC test), which identifies gifted and talented pupils for the 1200 OC places available each year to city and country children throughout New South Wales. Both Mark and Rebecca received the same mark for the mathematics component of the 2012 OC test. On the basis of their performance and grades at local public school, however, Mrs Mannix believes Mark's mathematical aptitude is far superior to his sister's and that there must have been a mistake in the administration of the test.
On 30 October 2012, the applicant e-mailed the High Performing Students unit of the Department of Education and Communities (DEC) expressing concerns about Mark's test result. Between 31 October and 6 November 2012 the Unit responded to the applicant's e-mails, providing her with a copy of the twins' answer booklets, screenshots showing the raw marks Mark received in the test, guidance on how the screenshots are interpreted, information about the 2012 OC appeal process, and other information including reasons why the test question booklet could not be made available to the applicant, and information about the difference between the OC test and curriculum-based tests.
On 7 November 2012 the applicant lodged a formal access application under the Government Information (Public Access) Act (GIPA Act) seeking access to the 2012 OC test question booklet. The application was refused by Ms Cheryl Best, General Manager, Learning and Development, on behalf the respondent by decision dated 28 November 2012, in which the respondent found an overriding public interest against disclosure of the 2012 OC test question booklet. The applicant subsequently sought a review from the Information and Privacy Commission. On 10 July 2013 the Commission in its report declined to make any recommendations, thereby upholding the department's decision.
The applicant applied to the Administrative Decisions Tribunal (ADT) for review of the department's decision on 18 July 2013. As that tribunal was superseded on 1 January 2014 by the Civil and Administrative Tribunal, it should be noted that the proceedings continue in the present tribunal and that the law to be applied is that which would have applied but for the enactment of the Civil and Administrative Tribunal Act 2013 (CAT Act): schedule 1, part 2, division 3, subdivision 2, item 7 of the CAT Act.
Applicable legislation
The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.
The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies.
The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.
With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.
There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure".
In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the Act. The respondent relies on two items in the Table: that disclosure could reasonably be expected to have the effect of "prejudic[ing] the effective exercise by an agency of the agency's functions" (item 1(f)), and "prejudic[ing] the conduct, effectiveness or integrity of any audit, test ... conducted by or on behalf of an agency by revealing its purpose, conduct or results" (item 1(h)). The test in question is the Opportunity Class Placement test.
The issue in the present application is thus whether the correct and preferable decision is that there is an overriding public interest against disclosure of the test questions by reason of the considerations in items 1(f) and 1(h).
Respondent's evidence
The respondent relied on the evidence of Magda Helen Pollak, leader of the High Performing Students unit in the DEC Business Systems Office. The unit is responsible for processing applications for year 4 pupils wishing to be considered for entry to opportunity classes, which are specialist classes in years 5 and 6 catering to the learning needs of gifted and talented students. The selection criteria include administering the OC placement test to all candidates under strictly invigilated external test conditions on one occasion per year in about 110 high school test centres in New South Wales.
At the hearing Ms Pollak adopted her statement of 11 October 2013 (exhibit R3), in which she stated inter alia that the reason the applicant had offered for her access request was "to ensure that the children were tested on mathematical material actually contained in the Year 4 syllabus".
Ms Pollak pointed out that the OC tests are designed to measure ability, like IQ tests. They are inherently different from those relating to curriculum related tests, such as the Higher School Certificate examinations. The OC test questions are developed afresh every year to ensure that the test remains contemporary and takes advantage of the latest educational research and testing techniques. The test questions are developed by the Australian Council for Educational Research (ACER) and are meticulously assessed by the respondent before being used.
The process involves extensive work by highly-esteemed experts in the field, including design and development of test questions, trialling of potential test items in a different sector within a different jurisdiction, detailed analysis of trial results, evaluation of each question by the unit, ongoing communications between ACER and the respondent to make any changes or improvements to the test questions, and approval for the contents and format of the final form of the test.
The OC test question development process is conducted with strict protocols to ensure confidentiality and to safeguard the integrity and effectiveness of the test. It costs the respondent more than $180,000 to develop the test questions each year and the process takes approximately 6 months to complete. There are no resources available to develop a separate backup test as a contingency measure.
DEC can thus only rely on OC test questions from previous years as a contingency pool from which a backup test may be produced in the event of a security breach with its current test.
It is important that each year the OC test remains contemporary and fit for purpose. For that reason, the more recent test questions are considered more valuable as a source for a backup test. For security reasons, the questions must also be sourced from more than one previous year. The respondent recognizes that a breach of security may not only compromise the confidentiality of a newly-developed test, but also the confidentiality of a number of recent past tests. High-level security has been maintained over all OC test questions since the inception of the test to ensure that DEC has a large contingency pool of questions. Thus questions in a backup OC test would be carefully selected from a number of recent past tests, including the 2012 OC test.
It was decided to release question booklets from 2001, 2002 and 2003, as well as a set of sample test papers, to provide applicants with examples so they can familiarize themselves with their format and content type beforehand. Those papers are publicly available on the DEC website. A copy of a sample test paper and its correct answer key was attached to Ms Pollak's statement.
In her oral evidence in chief, the witness said that ACER is internationally known for its test development expertise. It develops test items in house at secure premises in Victoria where an expert panel critiques and if necessary changes particular items. More test items are developed than are actually required for the test.
The draft tests arrive in New South Wales at her unit by a secure electronic method. A panel tests the questions in conjunction with ACER in the New South Wales context and in accordance with the State's own criteria. ACER then trials the items in Victorian schools in schools all over the State. The questions are then psychometrically analysed to produce measures that indicate ability and to discard misleading measures. ACER recommends a list of items, which are then returned to New South Wales for checks, for example to ensure that the diagrams are large enough and to identify distractors. The final selections are then returned to ACER and desktop published, before being checked by Ms Pollak alone before printing by a secure printer. The test is administered in July in 110 test centres. The papers are locked in secure storage in tamper-proof packaging and cartons. There is a contingency plan in case there are insufficient papers. The packages are opened in class with the children and witnesses present. After the test they are collected and counted
All question papers are tracked back to ACER. All booklets are numbered and if there is one missing there is a thorough investigation. It has sometimes happened that the presiding officer has placed a question booklet with an answer script. The question booklets are retained at ACER until April the following year. The question book number of each booklet is written on the answer book in case a child mistakenly writes his or her answers in the question book. In April a formal request is e-mailed by ACER for permission to destroy the booklets.
No-one has permission to look at the test booklet at the time of the test, unless it appears that there is a printing defect. Even teachers are not permitted to read the question books.
All the staff of the unit must have security clearances, as must ACER personnel. There are procedures in place for staff to report to their supervisors any improper approaches from outsiders seeking to obtain information about test papers.
Ms Pollak said the question papers must remain confidential after the test because items may be re-used in the case of a leak before the test. In that event the test will be rescheduled and that new test will be prepared. The unit would ask ACER to choose items from the earlier tests, balancing test areas and difficulty. That contingency has not yet arisen.
Confidentially after the test must also be maintained because they are not tests of performance but of ability. They are all inferential questions and inference cannot be taught. In the case of mathematics questions the more able pupils will notice a shortcut enabling them to complete the question in the time allowed, whereas a candidate attempting to work the problem out in the standard way would not have enough time to do so. The tests can also detect ability in pattern matching. It is significant that no IQ test papers are published either.
A third reason for post-test confidentiality of the question papers, Ms Pollak said, is that there is today a huge coaching industry purporting to prepare children for the OC and Selective High Schools (SHS) tests and for other examinations. DEC ensures that all children receive test familiarization materials, but seeks to keep as much material as possible out of the hands of the coaching colleges, which tend to use it in a way that amounts to false pretences.
Mrs Mannix began her cross-examination by apologizing for the "terse" tone of some of her earlier correspondence, which stemmed from the fact that 2012 was a particularly difficult year for the family. In answer to a question Ms Pollak explained that some items that have been found not to work are discarded, so it could occasionally happen that a 10-year old question might be used. One problem with releasing more recent papers is that DEC can seldom obtain copyright permission in relation to English items. Copyright authorization was obtained for the 10-year-old material, but it was a long process. There is no rolling release of more recent papers as they become 10 years old; the sample papers are cannibalized from a variety of sources.
Information obtained by the colleges helps them to hoodwink the public, Ms Pollak said. IQ test papers are never published and DEC favours helping pupils familiarize themselves with test technique. Coaching can give confidence at handling multiple choice tests, and parents are encouraged to help children to practise test-taking, using practice tests that are available from newsagents. . That is as effective as coaching and can be done at home at the weekend. Further, in the first 45 minutes of the test itself, candidates are given practice in completing the test The OC test is not part of the curriculum and does not examine knowledge of the syllabus.
The coaching colleges claim to teach the answers to the test questions, but that is not the case. It is impossible to prove that coaching influences the result, partly because parents do not tell the truth about whether children were coached or not. Many more pupils are coached than secure entry into selective schools, and many of those who do were not coached.
Coaching was formerly used to deal with weaknesses in particular subjects. Now, however, very bright pupils are coached, making it impossible to show that coaching is responsible for their superior results. As the OC test is essentially an intelligence test, it should be consistent with the results of internationally recognized IQ tests.
The applicant asked Ms Pollak if making more test question papers public would undermine the activities of the colleges. The witness replied that it would not, as the huge explosion in the number of colleges operated by persons of Chinese or Indian ethnic background was a function of cultural attitudes to education as a privilege rather than a right. Ms Pollak did not think that the practice of withholding question papers was feeding the college phenomenon, adding that nothing would undermine their phenomenal growth. Parents were culturally forced to have their children coached even if they disagreed with it. Practising multiple-choice tests was just as effective as coaching as it was not the style of test that pupils learned, but test-wiseness in relation to time management and similar matters.
Asked why ACER provided different types of tests to education authorities in South Australia and Victoria, the witness replied that other states have their own priorities and do not have as extensive a selective system as New South Wales. A policy decision had been made in New South Wales years ago to give opportunities to gifted and talented children regardless of means and in both city and country areas. To that end of there are also specialist high schools in a variety of fields.
The witness agreed that at one time the department had published, as a result of a GIPA request, statistics showing the first language background of children who were successful in such tests and that the majority were from non-English-speaking backgrounds. The department had, however, ceased seeking that information.
Asked why the department was so anxious to guard against leaks of recent papers when there had been no breach of security to date, the witness said that on one occasion there had been a post-test breach whereby a college had obtained a copy of a question paper. But there was always a risk that a leak could happen before the test. The department depended on its presiding officers and supervisors.
The department did not keep spare tests in case of a leak because there was no funding for that purpose, nor was there enough time to prepare two new tests in the one year. It would take six months to construct a new test if a leak occurred, but assembling a question paper from past tests would require much less time and might postpone the administration of the test by only a month.
In re-examination Ms Pollak said she had been a teacher for 20 years and had been involved in the OC test preparation process for 24 years. It was necessary to keep the more recent tests because the English items tend to age to a certain extent, although the other sections not so much. The types of questions are varied as far as possible. At one stage the unit discarded a section on numerical reasoning because the results matched those of the mathematics section.
The department helped to prepare children for the OC test by placing three past papers on the website, publishing examples in the test bulletin, giving instruction on how to do one's best and providing Internet presentations about the OC and SHS tests. When the applicant contacted the department late in 2012, the witness had provided her with the answer booklets for both children and a screen print of the answers given and the correct answers. The correct answers were starred.
Releasing the question book would not help children generally; the test is not diagnostic and does not show strengths or weaknesses in various subject areas. It is not performance-based, so that little is gained from knowing whether an answer is correct or not.
Further, the colleges would seize on any information that DEC published. Coaching is a big industry and colleges sometimes pretend in their advertising material to be part of the department. Some represent themselves as having private links to the department and would claim that any questions released by DEC had been obtained as a result of those links.
Applicant's evidence
The applicant adduced no oral evidence but tendered a bundle of documents (exhibit A1). The respondent objected to a good deal of the tendered material on the ground of relevance, but the documents objected to, while not directly relevant to the issue, had some value as background material.
The first document consisted of the applicant's written submissions, which paralleled her oral argument in rather more detail and explored a number of other matters such as departmental structure that do not greatly assist in resolving the issues before the tribunal. Also included were the original decision letter, a copy of Ms Pollak's statement, a position description for the office of director, business systems, and proposed departmental functional descriptions.
Also in exhibit A1 was an exchange of e-mails between the applicant and the principal of local public school in relation to the predominance of Asian children in OCs and SHSs, as well as the question of coaching generally. The principal wrote that she was both personally and professionally opposed to coaching colleges, pointing out that one of the leading countries in education, Finland, does not have such things as coaching colleges and the overall student performance is outstanding. In her reply the applicant argued that each child will learn best when in an appropriate cohort with a similar learning speed. Mark was displaying frustration, distress and bad behaviour when he was academically bored, and it was causing his parents real anxiety. The evidence did not disclose whether a child who for some reason had incorrectly been shown by the test as ineligible for OC placement could later, by reason of superior performance, earn an OC place.
Also in exhibit A1 were the NAPLAN (National Assessment Program Literacy and Numeracy) guidelines for managing test incidents in schools and protocols for test administration. A spreadsheet was included showing departmental expenditure of $2,239,252 on the development of the OC and SHS tests, a sample paper from the South Australian gifted children placement program and a New South Wales sample OC test were included.
Next, a journal article by Dianna T Kenny and Gavin Faunce of the University of Sydney Faculty of Health Sciences assessed the effects of out-of-school hours academic coaching on students' academic performance in end-of-year examinations, their attainment of academic scholarships and acceptance to OCs and SHSs (Dianna T. Kenny, Gavin Faunce, Effects of Academic Coaching on Elementary and Secondary School Students (2004) 98 Journal of Educational Research 115). Their analysis, which was the first study of this kind involving Australian pupils, showed that coached and uncoached students performed equally in most school subjects, but that coaching had a significant effect on success in the gifted and talented (OC) and SHS tests. It had no impact on scholarship examinations. But intensive test-wiseness and test-taking skills training had compromised the integrity of some selective entrance examinations, particularly for younger pupils.
As regards the SHS test, the data led the authors to the conclusion that for some students, coaching could have made a difference as to whether they were awarded a scholarship. One major implication, they wrote, was that test designers needed to note the effects that coaching has on test-taking performance, particularly for younger pupils seeking OC entry, as the test-wiseness and test-taking skills components of coaching had a significant effect on test performance. Another was that while the extravagant claims made by coaching colleges for improving academic achievement were unwarranted, the effect of coaching on test taking, particularly for younger children, urgently needed to be addressed by educational test designers and policy makers.
In an unpublished paper, Professor Kenny pointed out that, "the hours spent in after-school academic coaching colleges may prevent students from engaging in other developmental activities, such as play, socializing with peers, sporting and other extra- curricular activities that are necessary for the development of well-adjusted and creative adults". She also cautioned that test scores positively affected by coaching may not relate to subsequent criterion behaviour, thus reducing the constructed validity of the test. A study on the subsequent academic performance of students who were coached for OCs or SHSs was urgently needed. There was also the problem that it was not possible to control for the quality of the coaching received. It was possible that some of the effects of very good coaching, however defined, may have been lost when combined with poor or inappropriate coaching.
Applicant's submissions
In her submissions the applicant stated that she had basically two reasons for pursuing the matter. One was a personal interest sparked by the fact that seven years of experience and independent assessment showed that twins to be differently abled, whereas in mathematics they had been assessed a having identical ability. The applicant was trying to get to the bottom of that anomaly, as Mark had been assessed as being in the top 5 percent in mathematics by the University of New South Wales. As the test had been properly marked, she wanted to look at the test questions herself.
A second reason was that the correspondence showed that the public interest would be served by disclosure of the 2012 OC questions. Ms Pollak's answers did not constitute valid reasons for withholding that information. Parents can seek to prepare children using the three test papers supplied by DEC, but they are over 10 years old and there was no way of knowing if they bore any relation to the test actually conducted today. Professor Kenny had found that IQ was the main factor in OC and SHS testing outcomes, but that the younger cohort could be drilled successfully, especially in relation to mathematics. Her studies were the only ones performed on Australian pupils, but also referred to overseas studies.
The need to recycle recent questions in the event of a leak could be handled in other ways. The department had not shown that it needed to retain 10 years of tests. As there had never been a breach of security, the risk could be managed by having a standby question paper, such as a recent test, while the cut and paste method relied on the department was absurd. Historical practice could not be relied on.
While the coaching colleges did indeed constitute a problem, it would be better to release OC documents to all, as that would undermine the claims made by the colleges.
The copyright argument was not persuasive as the necessary rights could be purchased or negotiated. The department's failure to contract in a proper fashion did not constitute an argument and the public interest should not be contingent on commercial considerations. IQ tests are never released, not because of copyright but because it would be possible to train for them. DEC's real reason appeared to be copyright, but that raised the question of why they released any questions at all. The department had failed to establish a case based on the public interest, and mere convenience was not enough.
In her reply the applicant rejected the respondent's submission that release of the question paper would not help her children's development. But it was irrelevant if information released to the public was misunderstood, as s15 made clear. The respondent also appeared to think erroneously that convenience is part of risk management planning. Disclosure would not render the test unworkable as there are new tests every year, nor would release of the 2012 paper affect the 2014 test. The only relevance of the respondent's policy was to risk planning, but the GIPA Act item 1(f) is not about risk management and contingency planning. As regards item 1(h), disclosure would not prejudice the administration of the test, but only the respondent's risk plan. Nor had the contingency plan argument been raised in Cheryl Best's original decision letter.
The department still maintained that school assessment only measures hard work whereas the OC test measures IQ. But there are different types of intelligence and the applicant had a range of robust measures to show that the twins were differently abled in mathematics. As the Information Commissioner's report pointed out (p 8, para 2), departmental experts in English and mathematics check test items to ensure that no item contravenes the New South Wales syllabus for late stage 2. The report says the emphasis of the tests is to measure academic ability, not what the child has learned in class. Nevertheless it is important to note that the department checks the test against the mathematics syllabus.
The Information Commissioner's view on non-disclosure should be reconsidered. It was well known that coached children are told to memorize the tests they take and report back to the colleges on their contents. While the Department urges parents to have children practise with publicly available multiple-choice papers, they do not say that the three sample tests supplied are sufficient. The 45 minutes of practice allowed before the OC test commences is insufficient.
Disclosure would not affect DEC's administrative functions because it could still apply the test. DEC should assist all children by releasing at least one recent paper. The present situation is unsatisfactory and is having an adverse effect on children's lives. Coached children are not having a proper childhood, Mrs Mannix submitted, being denied a range of necessary development activities. Children in the position of her twins have no-one to play with because all their contemporaries are away at coaching.
Consideration
The tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act) is to make the correct and preferable decision having regard to the material before it and any applicable "written or unwritten law" (meaning legislation or common law). It is well established that in considering an application for review, the tribunal is not confined to the material that was before the deciding agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
The Act adopts a structured approach that requires decision-makers to:
(i) identify relevant public interest considerations in favour of disclosure,
(ii) identify relevant public interest considerations against disclosure,
(iii) attribute weight to each consideration for and against disclosure, and
(iv) determine whether the balance of the public interest lies in favour of or against disclosure of the government information (Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195, [29].
The public interest test must be applied in accordance with the principles set out in s 12 and s 15 of the GIPA Act. In any review of a reviewable decision, s 105 places the burden of justifying the decision on the agency concerned. The test to be applied in regard to requests for access to government information is set out in s 13, which provides that "There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". While s 12 establishes a general public interest in favour of disclosure and declares that there is no legal limit to any other public interest considerations favouring disclosure, the public interest considerations against disclosure are limited to those set out in the table to s 14 of the Act. Further, the Act contains provisions, such as ss 72 to 78, that mitigate the considerations against disclosure.
From the list in the table, the respondent has relied throughout on two considerations: (1) that disclosure could reasonably be expected to prejudice the effective exercise by the department of its functions (item 1(f)), and (2) that disclosure could reasonably be expected to prejudice the conduct, effectiveness and integrity of the OC placement test conducted by or on behalf of the department by revealing its purpose, conduct or results, whether or not commenced and whether or not completed (item 1(h)).
The requirement that disclosure "could reasonably be expected" to have the effect prescribed in one or more of the paragraphs in each clause is to be given its ordinary meaning and "require[s] a judgement be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous": see Nature Conservation Council at [146]. It does not require that the occurrence of certain events be likely in terms of any particular degree of likelihood, such as the balance (preponderance) of probabilities. It is a question of whether the expectation claimed is reasonably based: Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252, [57].
Ultimately, determining where the balance lies between the competing interests is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70]. The Act provides no set formula for calculating the weight of considerations, or for determining if one set of considerations outweighs the other. Any reasonable approach that follows s 15 principles seems to be acceptable. For while s 13 is expressed in terms of outweighing, any concept of weighing in this context can only be a metaphor, one that perhaps gives the process a greater aura of scientific measurement than it actually possesses. It is really a matter of placing identified considerations in order of priority or importance.
In favour of the disclosure of the 2012 OC placement test is the general public interest consideration in favour of the disclosure of government information enacted in s 12(1), and specifically those set out in s 12(2)(a), "Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance", and s 12(2)(b), "Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public". The general public interest referred to in s 12(1) is a weighty consideration as it supports the presumption in favour of disclosure and the stated objects of the Act.
The education of the young is undoubtedly an issue of public importance and one of the central concerns of State government. In the context of entry to OCs and SHSs, the competitiveness of the prescribed tests today is a matter of public concern, as are the test outcomes. At one stage DEC published, as a result of a GIPA request, statistics showing the first language background of children who were successful in such tests and that the majority were from non-English-speaking backgrounds. Ms Pollak said the department had ceased asking for that information. The explosive growth in the number of coaching colleges, for the most part operated by persons of Chinese or Indian background, it is also much discussed, raising equity issues in relation to parents who cannot afford the fees charged by the colleges. Research by Professor Kenny and others showed that while many of the claims made by the colleges for the results of coached students in tests were greatly exaggerated, there is a clear correlation between coaching and test outcomes for younger pupils, specifically those taking the OC and SHS tests. Researchers had concluded that coaching compromised the integrity of student ability tests and could have the result of placing pupils in classes where the more advanced material taught might surpass their abilities. More research was thought to be necessary on that point. Also of concern has been the effect of the hours spent in coaching in depriving children of opportunities for other developmental activities.
The applicant and the respondent substantially agreed that the coaching explosion was undesirable and that anything that undermined the industry should be encouraged, especially in view of the misleading and deceptive advertising in which it engaged. As the tribunal has not heard the other side of that argument, however, it could not adopt such a sweeping proposition. Suffice it to say that coaching for student ability tests is a matter of public debate and controversy.
How far publishing the 2012 OC question paper would advance that debate is a different matter, however. The respondent has already published three OC placement test question papers on its website and the methods it uses to prepare and administer tests is information that is in the public domain. The applicant submits that the publicly available test papers are too old to constitute useful guidance about current practices, but Ms Pollak's uncontradicted evidence is that the mathematics and general ability sections of the test paper do not change significantly in form and content over time and the main variations are in the English section, where there is some adaptation to take account of current topics.
Ms Pollak also testified that on the basis of experience that if the 2012 paper were released, the colleges would claim that they had obtained them through their special links with the department; but that prediction is necessarily rather speculative. The applicant in her submissions discounted that possibility in any event, saying it was well known that the colleges asked pupils taking the test to memorize the paper and report back to the college on its contents. There was no evidence to support that submission, however.
The tribunal is required by s 55 to take into account the applicant's personal circumstances as factors that may support disclosure. In this case Mrs Mannix's concern for her school-age children is relevant and clearly an important part of her motivation for bringing the present application. The respondent had, however, already supplied the applicant with a copy of the twins' 2012 OC test and is booklets, screenshots showing the raw marks Mark had received, guidance on how to interpret the screenshots, reasons why the question booklet could not be made available to her and other information about the difference between the OC test and curriculum-based tests.
Ms Pollak's evidence was that the OC test is diagnostic and does not show strengths or weaknesses in various subject areas. As it measures ability, pattern recognition and inferential aptitude rather than performance, having the 2012 question paper would be of little assistance to the applicant because little is gained from knowing whether an answer is correct or not.
The above remarks also apply to the public benefit example in s 12(2)(b), as in the present context the two subjects are largely co-extensive. The applicant also relied, although not strongly, on the consideration in s 12(2)(e), which deals with the revelation of official misconduct. There is no significant evidence to support that ground, however.
With respect to the public interest considerations against disclosure, the respondent relies, as was noted above, on item 1(f) and item 1(h) in the s 14 table. The latter focuses on whether disclosure could reasonably be expected to prejudice the conduct, effectiveness and integrity of the OC placement test by revealing its purpose, conduct or results, whether or not commenced and whether or not completed. In the present context, that item covers the same ground as item 1(f), which accordingly need not be discussed separately.
The main thrust of DEC's argument was that the 2012 OC test questions remain an important part of the contingency pool of questions from which a backup OC test could be assembled in the event of a pre-test security breach in relation to an OC test in the future. Disclosing the 2012 questions would not only diminish the contingency pool for a backup test, thereby prejudicing the department's risk management measures and its functions in operating effective and robust OC tests, but it would also prejudice the effectiveness and integrity of the OC tests as perceived by the general public. It could be seen as an indication that the respondent is unable to safeguard confidential information, which could cause loss of public confidence in the validity of the OC test results.
The evidence showed that the preparation of the test question papers each year takes approximately 6 months of extensive work, trialling and checking in close collaboration with ACER at a cost of approximately $180,000. The applicant challenged that cost estimate, pointing out that the Department expended a total of over $2.2 million on the OC and SHS tests over a year, but there need be no necessary inconsistency between those two figures, depending on what they included, and nothing in the evidence showed that either one was incorrect. Nor does that evidence establish that funds are available to develop a new test if a leak should occur or that a new test paper could be prepared in less than 6 months.
Ms Pollak said that the question papers had to remain confidential after the test because items might be reused in the case of a leak, in which event the administration of the test might be delayed by only about a month. Otherwise a new test paper would take six months to prepare. There were no resources to pay for a replacement paper in that situation or for a standby paper to be kept on hand in case of a leak. Post-test confidentiality also had to be maintained because the test measured ability, not performance. It is for that reason that no IQ test papers are published. Further, the respondent wanted to keep as much material as possible out of the hands of the coaching industry, which would use it to mislead the public. There were also copyright licensing problems relating to the English section of the paper that would make it impracticable to release more recent papers.
The applicant submitted that if the nature of the test was such that it could not be studied for, releasing the 2012 questions would not influence outcomes even if the colleges made use of them. There was indeed a touch of ambivalence about the respondent's evidence on that point. But it is relevant that the applicant's own case relied on the research of Professor Kenny, which showed that coaching had a significant effect on success in OC and SHS tests and that intensive training in test-taking skills had compromised the integrity of some selective entrance examinations, particularly for younger pupils. The studies showed that test designers needed to note that effect and take it into account in test design. The respondent did not dispute those findings but cautioned that it is difficult to obtain reliable evidence on the subject because parents are not truthful about whether or not their children have been coached, and the fact that today even the brightest children are coached tends to skew the results in such a way as to suggest that coaching is more effective than it is in reality.
The applicant contended that risk management needs could be handled in other ways and that the respondent had not shown why it needed to retain 10 years of tests. Items 1(f) and 1(h) were not about risk management in any event, and publication of the 2012 test would not prevent the department from conducting the test in the future. Any necessary copyright licences could be negotiated.
The respondent did, however, explain that 10 years of tests were needed so as to enable questions to be sourced from different years, for security reasons. With a sufficient bank of past questions from which to prepare a substitute paper, the discovery of a pre-test leak might delay the holding of the test by only about a month. There were no resources available to prepare a standby paper. The argument that copyright problems could be overcome by negotiation is necessarily speculative.
The applicant further submitted that item 1(h) could not apply because the test could still be conducted if a leak had occurred and mere administrative convenience carried little weight. The word "prejudice" in item 1(h) does indeed mean more than making something more difficult. It has been found to mean "impede or derogate from" or "to cause detriment or disadvantage": Hurst at [60]. But the evidence shows that if the established reserve of past questions was not available, a leak could result inter alia in a delay of six months in applying the test, even if the resources for preparing a new question paper were available, and would be likely to undermine public confidence in the OC and SHS testing process. Those and related consequences would indeed "impede or derogate from" the test and so constitute a significant detriment . They would thus amount to "prejudice" within item 1(h).
The applicant rejected the respondent's argument that the 2012 question paper would give her little assistance over and above that which the material already released to her would provide, by submitting that s 15(d) made the possibility that she would misunderstand or misinterpret the significance of the question paper irrelevant. That appears to be correct, but the other limb of DEC's argument on that point was that the coaching colleges would make misleading or deceptive use of the information by, for example, claiming that they had obtained it through inside links with the department. That prediction was based on experience, but was also necessarily partly conjectural. But in such a case it would not be the test questions themselves that caused parents to be misled, but the additional "information" supplied by the colleges. The respondent's argument on that point is thus not made irrelevant by s 15(d).
Conclusion
The tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in the document in issue in accordance with the Act, having due regard to the principles in s 15. That requires the tribunal to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: Flack v Commissioner of Police [2011] NSWADT 286 at [19]; Hurst at [47]. Unless there is an overriding public interest against disclosure, the presumption in favour of disclosure applies by reason of s 5.
Because the respondent bears the onus of justifying its decision to refuse the applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.
The applicant presented a well-researched and articulate case reflecting a mother's deep and rational concern for her son's education. Nevertheless, in light of all the evidence and the submissions, I find that the respondent's evidence and submissions are sufficiently cogent for it to have discharged its onus under s 105 and I find that the public interest considerations in favour of disclosure of the 2012 OC placement test paper are outweighed by the public interest considerations against disclosure. I note that the Information Commissioner also supported the respondent's position in its report.
The decision under review is affirmed.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 24 March 2014
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